Brambles Australia Ltd v Mercantile Mutual Insurance (Australia) Ltd [2000] QCA 261

1 [2000] QCA 261 COURT OF APPEAL DAVIES JA McPHERSON JA THOMAS JA Application No 4614 of 2000 BRAMBLES AUSTRALIA LIMITED Applicant/First Defendant and MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LIMITED Respondent/Third Party BRISBANE ..DATE 03/07/2000 JUDGMENT -- 1 of 6 -- 03072000 T11-12/JB27 M/T COA164/2000 2 JUDGMENT DAVIES JA: This is an application pursuant to section 118 of the District Court Act 1967 for leave to appeal against orders made by a District Court Judge upon an application by the respondent for summary judgment against the applicant in respect of the applicant's third party claim against the respondent. Those orders were: 1. That the applicant deliver to the respondent within two weeks of the order further and better particulars of paragraph 8 of its third party notice which specify exactly where the plaintiff or its principal was at the moment of sustaining personal injuries with respect to which the indemnity is sought. 2. The applicant plainly indicate to the respondent: (a) If its claim against it is advanced in reliance upon the provisions of clause 4.4.5 of the relevant policy of insurance. (b) If so, the facts and circumstances which it alleges render that clause applicable. The circumstances giving rise to the third party claim of the applicant against the respondent so far as they appear from the pleadings are as follows. The plaintiff, whose employer worked for the applicant/defendant on a sub-contracting basis, was hit by a -- 2 of 6 -- 03072000 T11-12/JB27 M/T COA164/2000 3 JUDGMENT garbage bin dropped from a fork lift operated by a servant of the applicant. He sued the applicant for damages for personal injuries. The applicant then joined the respondent seeking to be indemnified by it against the plaintiff's damages pursuant to a public liability policy taken out by the plaintiff's employer which extended to provide indemnity for principals of the employer which included the applicant. The plaintiff's claim against the applicant was settled leaving the question to be determined on a third party proceeding of whether the respondent was liable to indemnify the applicant under that policy. The third party notice pleaded the claim under the policy in quite general terms and the defence by the respondent to that claim was equally uninformative. However in an affidavit filed in support of the application for summary judgment the respondent relied on an exclusion clause to the policy, clause 4.4. The learned primary Judge was satisfied that there was no issue on the pleadings between the parties as to facts which prima facie brought the matter within clause 4.4. These facts were that the personal injury arose out of the ownership, operation, control or use by the applicant of a fork lift truck; that the fork lift truck was registered; and that the fork lift truck was a vehicle in respect of which insurance was required to be effected by the applicant under state legislation. It followed that unless the applicant could rely on an exception to the exclusion contained in clause 4.4, the -- 3 of 6 -- 03072000 T11-12/JB27 M/T COA164/2000 4 JUDGMENT respondent was not liable to indemnify it. Before his Honour the applicant referred to two such possible exceptions, those being contained in clauses 4.4.4 and 4.4.5. The first of those provided an exception to the exclusion where the personal injury is "caused by or arising from the delivery or collection of goods to or from any vehicle where such Personal Injury ... occurs beyond the limits of any carriageway or thoroughfare". Clause 4.4.5 provided an exception to the exclusion where the personal injury is "arising out of the loading or unloading of or the delivery or collection of goods to or from any Vehicle used in work undertaken by You or on Your behalf but not in Your physical or legal control". His Honour then made the orders to which I have just referred. Paragraph 8 of the third party notice to which his Honour referred in the first of those orders was in the following terms: "On or about 15 May 1995 Aorangi Trust Pty Ltd was performing the sub-contract at or about a McDonalds restaurant at Torrens Road, Annerley in the State of Queensland." Mr Aorangi was the plaintiff who was performing that work. This paragraph of his Honour's orders was plainly directed at clause 4.4.4. and paragraph 2 of his Honour's orders was -- 4 of 6 -- 03072000 T11-12/JB27 M/T COA164/2000 5 JUDGMENT equally plainly directed at clause 4.4.5. It is correct, as Mr Hastie has pointed out, that on the state of the pleadings as they stood before his Honour on the summary judgment application the third party had not specifically raised the exclusion clause contained in clause 4.4. However, it was clearly raised on the factual basis as they appeared in the pleadings as his Honour so found and it was clearly raised in the course of argument on that application. It therefore appears necessary that the party for whom Mr Hastie appears plead reliance upon exceptions from that exclusion if it is to succeed. Mr Hastie's argument before us today relies on two aspects of the orders which his Honour made which he contests. In the first of these Mr Hastie submits his Honour should have refused summary judgment and secondly he submits that his Honour should have required the respondent to plead the exclusion clause before he was required to plead exceptions to that exclusion clause. As to the second of these, his submission may have been strictly correct as a matter of pleading, but the matter was plainly raised on the pleadings as I have indicated and it was plainly raised in the course of argument. The essential question, as Mr Hastie has pointed out, was whether his client can bring itself within the exceptions to the exclusion clause. It seems therefore plainly a sensible order for his Honour to have made of the kind which he did, in fact, make. -- 5 of 6 -- 03072000 T11-12/JB27 M/T COA164/2000 6 JUDGMENT Similarly, it seems to me, his Honour was correct in refusing to dismiss the application for summary judgment because, as was pointed out during the course of argument, if in fact the applicant is unable, by pleading, to bring itself within exceptions to the exclusion clause, then it appears almost inevitable that an order for summary judgment should be made. It seems to me, with respect therefore, that both of the arguments advanced by Mr Hastie should fail and I would refuse the application. McPHERSON JA: I agree. THOMAS JA: I agree. DAVIES JA: The application is refused. ... DAVIES JA: With costs. ----- -- 6 of 6 --